1
5
CODE: 1090
JULIE CAVANAUGH-BILL
Nevada Bar No. 11533
CAVANAUGH-BILL LAW OFFICES, LLC.
Henderson Bank Building
401 Railroad Street, Suite 307
Elko, NV 89801
(775) 753-4357
(775) 753-4360-Facsimile
6
Attorney for Plaintiff
2
3
4
7
IN THE SECOND JUDICIAL DISTRCIT COURT OF THE STATE OF NEVADA
8
IN AND FOR THE COUNTY OF WASHOE
9
10
MARK SMITH, DONALD A. MOLDE
AND THE MARK SMITH FOUNDATION,
CASE NO.: CV14-01870
Plaintiff/Petitioners,
11
DEPT. NO.: 6
vs.
12
13
14
15
STATE OF NEVADA, ex rel., THE
NEVADA BOARD OF WILDLIFE
COMMISSIONERS, STATE OF
NEVADA, ex rel., ITS DEPARTMENT OF
WILDLIFE,
Defendants/Respondents.
16
17
18
19
20
21
FIRST AMEDED COMPLAINT AND FOR DECLARATORY AND
INJUNCTIVE RELIEF WITH PETITION FOR ISSUANCE OF WRIT OF
MANDAMUS AND/OR PROHIBITION
COMES NOW Plaintiffs/Petitioners above named, as and for their complaint
against Defendants/Respondents, allege as follows:
22
23
1. NRS 501.100 provides:
Wildlife in this State not domesticated and in its natural habitat is part of the
24
25
26
27
natural resources belonging to the people of the State of Nevada.
The preservation, protection, management and restoration of wildlife within
the State contribute immeasurably to the aesthetic, recreational and economic
aspects of these natural resources.
28
1
1
2.
Plaintiffs Mark Smith and Donald A. Molde are individuals and residents of
2
the State of Nevada. Plaintiff The Mark E. Smith Foundation is registered in Nevada as a
3
501(c) (3) foundation.
3.
4
Plaintiffs have a direct interest in the dispute. Wildlife is part of the bounty
5
of the State enjoyed by its citizens, and Defendants are vested with the obligation to be
6
good stewards of it. Plaintiffs are interested in the protection of wildlife and thus in the
7
agencies named herein adhering to their obligations. Molde is a lifelong advocate for this
8
cause. Smith is too, and his foundation has worked hard on trapping issues, including the
9
recent controversies involving the black bear trappings. Both are avid observers of
10
wildlife. They frequent the areas where trapping occurs in Nevada for aesthetic and
11
12
13
14
15
16
17
recreational purposes. There, they have endeavored and will continue to endeavor to view
the wildlife present, including many of the non-target species, in order to appreciate its
wonder and to study the ways and habits of the different wild species that inhabit Nevada.
Molde has been active for years on trapping regulation and legislation, lobbying the
Legislature and the Commission annually, and taking on a role of advocating more
stringent trap visitation through statute and regulation.1 His efforts were thwarted by the
improper delegation addressed by this suit, and his and Smith’s opportunities to enjoy the
presence of non-target animals in the wild were also impeded. The Plaintiff Foundation is
18
19
20
dedicated to preservation of wildlife. The Foundation acts to do this for the benefit of the
public. Plaintiffs also have a further interest in ensuring the Commission acts under
legislation that follows the Nevada Constitution.
21
22
23
24
4.
Defendant State of Nevada, ex rel., the Nevada Board of Wildlife
Commissioners (hereafter “the Commission”) consists of nine members appointed by the
Governor of the State of Nevada and is charged with establishing policies related to
wildlife in the State of Nevada pursuant to NRS 501.105 et seq. Defendants/Respondent
25
26
27
28
Molde’s dogs have been trapped in traps set by licensed trappers in Nevada. Mark
Smith’s photographic business and the Foundation’s activities are infringed upon by the
poorly neglected trapping. See Smith Declaration in reply to opposition to motion for
preliminary injunction.
1
2
1
State of Nevada, ex rel., Nevada Department of Wildlife is a State agency charged with
2
administering and enforcing laws concerning wildlife. It is named as a necessary party.
3
4
5
5.
This Court has the jurisdiction to review the adequacy of an agency’s
rulemaking under NRS 233B.110.
6.
The Commission has failed and/or refused to carry out its statutory
6
obligations to preserve, protect, manage and restore wildlife within Nevada, which wildlife
7
belongs to Plaintiffs and all other residents of the State of Nevada. The Commissions
8
failures include but are not limited to the following particulars:
9
10
11
12
13
14
15
16
17
a. As provided by existing law, the Commission regulates the use of leg hold traps and
other types of traps and snares for capture of so-called “furbearing” animals in
Nevada which include among others: bobcats, foxes, coyotes, beaver and muskrat.
The Commission has determined at its August 16, 2014 meeting that, with limited
exception, such traps and snares are to be visited by the trapper setting such devices
across Nevada but once every 96 hours (4 days), the maximum interval allowed by
Nevada law and the longest visitation interval in the United States apart from
Montana and Alaska. Such traps and snares are inherently non-selective and will
capture any wild animal, bird or domestic animal which contacts and triggers the
trap or snare. Data from the Nevada Department of Wildlife, over a recent span of 8
18
19
20
21
22
23
24
years, shows that unintended victims of such traps or snares (so-called “non-target
species”) number in the thousands, ranging from pack rats, rabbits, golden eagles
and domestic dogs and cats to mountain lions.
b. It is legal to trap bobcats (lynx rufus) in Nevada but not mountain lions (puma
concolor). Because of escalating fur prices, particularly for bobcat pelts (which
may exceed $1000 per pelt), trappers vigorously pursue bobcats by use of leg hold
traps and snares in all parts of Nevada. Since mountain lions and bobcats live in
25
similar habitat and have similar habits, mountain lions frequently encounter such
26
devices. In doing so, mountain lions suffer loss of toes, foot pad injuries, other leg
27
and foot injuries, broken and/or missing teeth (from biting the trap or attached
28
chain), and/or combinations of such injuries. Some mountain lions have died from
3
1
starvation due to foot injuries sustained from trap encounters which render the
2
animals unable to successfully pursue prey. Mountain lions legally hunted and
3
killed in Nevada are required to have a “check-in” inspection by Nevada
4
Department of Wildlife officials. Such inspections show that about 1 of every 6
5
mountain lions legally killed by hunters show evidence of trap or snare injuries.
6
These injuries are not seen in mountain lions living in states where leg hold traps
7
and snares are not used. Plaintiff’s information and belief is that there are many
8
mountain lions in Nevada, belonging to Plaintiffs and all citizens of Nevada that
9
have been injured, killed, and/or have died of starvation because of such traps and
10
snares and will continue to be so injured and killed without protective action by the
Commission.2
11
c. The above example of unintentional injury and death suffered by mountain lions
12
applies equally to all other of the thousands of non-target wildlife and domestic
13
animals captured in traps and snares over a decade. Each of these non-target
14
species, whether a simple pack rat, a golden eagle, or a domestic dog, can suffer
15
similar harm. All affected wildlife belong to the public as part of the public trust
16
doctrine as specified in a series of U.S. Supreme Court cases (i.e., Hughes v.
17
Oklahoma; Callopy v. Wildlife Commission; O’Brien v. Wyoming) and pursuant to
18
NRS 501.100.
19
d. Traps and snares are not benign. Injuries that occur to unintentional victims of
20
these devices include but are not limited to: leg and foot injuries, missing toes and
21
claws, broken or missing teeth, dislocated joints, broken bones, permanent crippling
22
paw injuries and others. The longer a trap or snare victim resides in the device
23
before release, the more likely that injury and/or death will occur. Such animals can
24
25
26
27
28
List of non-target species caught by trappers and reported to the Nevada Department of
Wildlife: rabbit, domestic dog, domestic cat, mountain lion, other, livestock, game,
badger, bear, bobcat, chipmunk, ermine, feral pig, ground squirrel, pack rat, pond turtle,
skunk, golden eagle, hawk, owl, blue heron, chukar, coot, duck, goose, magpie, quail, rail,
raven.
2
4
1
also die sooner from causes such as predation by other animals or exposure.
2
Regardless, the quicker a non-target victim of a trap or snare is released, the less
3
chance it has for injury and/or death and the better its chance for survival.
4
5
6
7
6.
The Commission is obligated by law to adopt regulations setting the time
interval within which trappers must visit their traps and snares and release the animals
therefrom. Such deliberation by the Commission should take into account its duty to
protect non-target species from injury and/or death from accidental trap and snare
8
encounters. The Commission has failed in this obligation in that it has placed the
9
convenience of trappers over consideration of a need to protect wildlife and domestic
10
animals from unnecessary harm, injury, suffering and death.
11
7. NRS 503.570 provides:
12
1. A person taking or causing to be taken wild mammals by means of traps, snares
or similar devices which do not, or are not designed to, cause immediate death to
the mammals, shall, if the traps, snares or similar devices are placed or set to
take mammals, visit or cause to be visited each trap, snare or similar device at a
frequency specified in regulations adopted by the Commission pursuant to
subsection 3 during all of the time the trap, snare or similar device is placed set
or used to take wild mammals, and remove therefrom any mammals caught
therein.
13
14
15
16
17
18
***
19
20
21
22
23
24
25
26
3. The Commission shall adopt regulations setting forth the frequency at which a
person who takes or causes to be taken wild mammals by means of traps, snares
or similar devices which do not, or not designed to, cause immediate death to the
mammals must visit a trap, snare or similar device. The regulations must
require the person to visit a trap, snare or similar device at least once each 96
hours. In adopting the regulations, the Commission shall consider requiring a
trap, snare or similar device placed in close proximity to a populated or heavily
used area by persons to be visited more frequently that a trap, snare or similar
device which is not placed in close proximity to such an area.
27
28
8.
The Commission, by its actions and inactions, has ignored dramatic non-
target data relative to the numbers of non-target animals and birds which were captured,
5
1
injured and died in traps and snares. Said data was collected by the Nevada Department of
2
Wildlife from licensed trappers who appeared to respond to the mandatory self-report in a
3
full and complete manner. Plaintiffs’ information and belief is that other trappers did not
4
fill out the self-report in an honest manner, and a significant segment of licensed trappers
5
failed to respond at all. Plaintiff’s information and belief is that the available non-target
6
data is but the “tip of the iceberg” and that the true extent of non-target victims is
7
unknown. By failing to consider said data collected by the Nevada Department of
8
Wildlife, the Commission, by promulgating a 96-hour trap visitation interval, virtually
9
state-wide, has maintained the very conditions under which non-target animals and birds
10
11
12
13
14
15
16
17
have been adversely impacted over the past decade and has failed to offer, or even to
consider, other reasonable forms of protection for such animals and birds.
9.
By using the terms “populated” and “heavily used” in enacting NRS
503.570, the legislature, in Plaintiffs’ information and belief, recognized a perceived
public safety threat expressed by members of the public who are concerned about the
safety and well-being of children, pets, other domestic animals, and financial and
personal risk to themselves should they encounter a circumstance where an unintended
victim is caught in a trap or snare and where the member would feel obligated or
compelled to extract the victim from the trap or snare without adequate knowledge or
18
19
20
21
22
23
24
equipment to insure a safe release and to avoid personal injury and need for subsequent
medical or veterinarian treatment.
10.
Plaintiffs recognize that trapping of furbearing mammals using leg hold traps
and other kinds of traps and snares is a legal means of killing wildlife in Nevada and this
Complaint does not seek to make such trapping illegal. This Complaint, based upon the
above, and the additional allegations below, seeks relief to require the Commission
properly to undertake its obligations to adopt regulations, considering all data collected by
25
its staff at the Nevada Department of Wildlife as well as concerns expressed by members
26
of the non-trapping public about such data and practices, as it impacts wildlife as well as
27
public safety, so as to shorten the 96 hour trap visitation interval and take other measures
28
to afford target and non-target wildlife species and domestic animals additional protections
6
1
against grievous and unnecessary suffering and harm from such devices. The Complaint
2
also seeks interim relief in the form of a declaration that the Commission’s 96 hour trap
3
visitation interval is ineffective for the reasons above, with a corresponding injunction
4
postponing the trapping season (beginning October, 2014 for most furbearers; beginning
5
December, 2014 for bobcats) until final decision herein and/or further order of the Court.
FIRST CLAIM FOR RELIEF
6
11.
7
Plaintiffs refer to and by such reference incorporates herein each, every, and
8
all averments contained in paragraphs 1-10 hereinabove as though fully set forth at this
9
point.
10
11
12
13
14
15
16
17
12.
the preservation, protection, and management of all wild animals and birds in the State of
Nevada, including the above-mentioned “non-target” animals and birds. The Commission
has failed and/or refused to do so. In such failure and refusal, the Commission has also
ignored and/or not properly considered the data supplied by the Nevada Department of
Wildlife as to damage, injury and death suffered by non-target wildlife and domestic
animals in the State of Nevada when such are captured in leg hold and other traps and
snares intended only to capture targeted furbearing mammals.
13.
18
19
20
21
22
23
24
The Commission is obligated by law to set forth reasonable regulations for
Plaintiffs are damaged by this failure and refusal of the Commission to act to
reasonably protect and preserve said non-target animals and birds belonging to Plaintiffs
and other people in the State of Nevada.
14.
Writs of mandate and/or prohibition should issue to compel the Commission
to set forth reasonable regulations for the preservation, protection, and management of all
wild animals and birds in the State of Nevada, including the above-mentioned “non-target”
animals and birds. The Commission has failed and/or refused to do so. In such failure and
refusal, the Commission has also ignored and/or not properly considered the data supplied
25
by the Nevada Department of Wildlife as to damage, injury and death suffered by non-
26
target wildlife and domestic animals in the State of Nevada when such are captured in leg
27
hold and other traps and snares intended only to capture targeted furbearing mammals.
28
7
1
15.
Plaintiffs are entitled to an award of costs of suit and a reasonable amount as
2
and for attorney fees, including for acting as a private attorney general on behalf of the
3
State of Nevada and its citizens.
SECOND CLAIM FOR RELIEF
4
16.
5
Plaintiffs refer to and by such reference incorporates herein each, every, and
6
all averments contained in paragraphs 1-15 hereinabove as though fully set forth at this
7
point.
17.
8
9
The 2013 Nevada Legislature enacted the last sentence of NRS 503.570 (3),
to wit:
11
In adopting the regulations, the Commission shall consider requiring a trap, share or
similar device to be visited more frequently than a trap, snare or similar device
which is not placed in close proximity to such an area.
12
18.
10
By such enactment, the Nevada Legislature transferred authority to regulate
13
the trap visitation interval from itself to the Commission, while maintaining 96 hours as
14
the maximum allowable visitation interval per Nevada statutes. Prior to such enactment,
15
the trap visitation interval was required by the Legislature to be 96 hours, statewide. After
16
such enactment, the Commission was given the authority to shorten the trap visitation
17
interval.
18
19.
Rules and regulations governing wildlife management in Nevada are exempt
19
from Nevada’s animal cruelty statutes per NRS 574.200. Nonetheless, the Legislature has
20
seen fit to mandate a trap visitation interval for decades, suggesting that the welfare of
21
trapped animals does have a place in regulation despite the exemption from animal cruelty
22
laws. By enacting NRS 503.570 giving the Commission the authority to shorten the trap
23
visitation interval, the Legislature has acknowledged Plaintiffs’ and the public’s concerns
24
about the importance of a mandated visitation period and in particular the length of the
25
visitation interval and its potential to cause grievous harm to unintended victims of traps
26
27
28
and snares.
20.
The terms “populated” and “heavily used” as presented in NRS 503.570
were concepts that lacked agreed-upon definitions and created considerable confusion for
the Commission and concerned public during deliberations regarding NRS 503.570.
8
1
Plaintiffs’ belief and information is that the Commission chose to take the narrowest and
2
unreasonable view of possible definitions of these terms and phrases in order to favor
3
trapper convenience over the welfare of non-target species. The delegation to the
4
Commission as set forth in NRS 503.570 (3) to “consider” a shorter trap visitation interval
5
in “populated” and “heavily used” areas without clarity or specificity of meaning was an
6
improper delegation of legislative power, prohibited by the Constitution of the State of
7
Nevada, including its separation of powers clause and structure.
21.
8
Such delegation was improper because the Legislature failed to provide the
9
Commission with adequate guidelines or criteria for engaging in fact-finding that could
10
lead to a better regulation. This failure not only defeats the delegation, but renders the
11
regulation ineffective.
THIRD CLAIM FOR RELIEF
12
22.
13
14
15
16
17
Plaintiffs refer to and by such reference incorporates herein each, every, and
all averments contained in paragraphs 1-21 hereinabove as though fully set forth at this
point.
23.
The Commission is obligated by law to develop plans for wildlife
management as the steward of Nevada’s wildlife. The Commission has failed to consider
or develop a plan to manage wildlife as it relates to trapping of non-target animals
18
19
20
21
22
23
24
(including domestic pets and other domestic animals) and has chosen to continue with the
default trap visitation requirement of 96 hours for nearly the entire state, insuring
unnecessary continued suffering, harm, injury and death for non-target species each and
every trapping season.
24.
To Petitioners’ information and belief, the Commission has failed to develop
a plan to manage wildlife as it relates to trapping of non-target animals and birds due to
improper deference to the convenience of trappers without support within the law to show
25
that such deference to trappers and their inherently dangerous activity as practiced on
26
public lands within Nevada outweighs the concerns of the non-trapping public for the
27
welfare and safety of wildlife and domestic animals. The Commission devoted its
28
attention primarily to trapper concerns about hardships visiting trap lines during bad
9
1
weather, illness, vehicle problems, employment obligations and “threats” of trapping
2
closer to populated areas should the Commission see fit to shorten the trap visitation
3
interval. The Commission virtually ignored concerns about animal suffering, harm, injury
4
and death from trapper neglect while voicing an inability to understand the non-trapping
5
public’s concerns about animal suffering as it relates to trapping.
25.
6
As most of the trapping of furbearing animals in Nevada by private trappers
7
occurs on public lands, a proper plan of wildlife management as it relates to trapping of
8
non-target animals and birds may require federal assessments and impact statements
9
related to the National Environmental Protection Act, the Endangered Species Act and
10
other potentially applicable federal laws and corresponding regulations. By failing or
11
12
13
refusing to undertake such a proper plan of wildlife management, the Commission has
avoided the need for such considerations of applicable federal law. Avoiding the
obligation to develop a plan avoids the need for such expensive undertakings.
26.
14
15
A writ of mandate and/or prohibition should issue compelling the
Commission to develop such a plan.
FOURTH CLAIM FOR RELIEF
16
27.
17
Plaintiffs refer to and by such reference incorporates herein each, every, and
all averments contained in paragraphs 1-26 hereinabove as though fully set forth at this
18
19
20
21
22
23
24
25
point.
28.
A preliminary and permanent injunction is available to Plaintiffs as the
Commission’s action and inaction, if allowed to continue, will cause irreparable harm to
Plaintiffs for which compensatory relief is inadequate. The Plaintiffs have a reasonable
likelihood of success on the merits. Attorney General v. NOS Communications, 120 Nev.
65, 67, 84 P.3d 1052, 1053 (2004); Dixon v. Thatcher, 103 Nev. 414, 415, 742 P.2d 1029
(1987).
29.
Article 6, Section 6 of the Nevada Constitution vests District Courts of
26
Nevada with the power to issue injunctions. Pursuant to NRS 30.030 and 30.040, this
27
Court has injunctive jurisdiction over the matter. Public entities can be enjoined if they
28
10
1
exceed their authority. Reno v. Reno Newspapers, Inc., 105 Nev. 886, 890, 784 P.2d 974,
2
977 (1989).
3
30.
Plaintiffs have no adequate remedy at law. The failures noted above are not
4
compensable by an award of monetary damages. The public interest will be served in the
5
event the Plaintiffs are successful herein.
6
WHEREFOR, Plaintiffs/Petitioners pray as follows:
7
1.
For a Declaration that the delegation set forth in NRS 503.570 (3) for the
8
Commission to “consider” a shorter trap visitation period in certain areas without clear
9
definition or meaning of “populated” and “heavily used” and without adequate guidelines
10
or criteria is an improper delegation of legislative power and so the resulting regulation at
11
12
13
14
15
16
17
issue is void. Should the Court make this finding, Plaintiffs also request that the Court
enjoin the Commission from establishing further trapping season(s) until such time as the
legislature cures the inadequacy of its delegation.
2.
For a Declaration that the action of the Commission at its August 16, 2014
meeting, keeping the maximum trap visitation interval at 96 hours statewide (with minor
exceptions), failed to meet its statutory duty to protect target and non-target wildlife
species and domestic animals from unnecessary suffering, harm, injury and death and so is
void, and enjoining the Commission from establishing further trapping season(s) until a
18
19
20
21
22
23
24
proper regulation is promulgated subject to this Court’s review of the new regulation and
the process leading to its adoption.
3.
For an Order requiring the Commission to hold such hearings as are
necessary to adopt a “trapping management plan” as it relates to trapping of target and
non-target wildlife species, domestic animals, and public safety, to include such elements
as (but not limited to): shorter trap visitation interval; standards for size, type, number,
trigger tension and other characteristics of traps and snares; setback requirements from
25
roads and public spaces for all forms of traps, trapper education, quotas; and other
26
reasonable measures to avoid or minimize suffering, harm, injury and death of said
27
animals and birds, and with Court approval of the completed “plan” before
28
implementation.
11
1
4.
For an Order requiring the Commission to insure a fair balance of views on
2
any committee or planning group considering a “trapping management plan”, to include
3
Plaintiffs and other members of the non-trapping public, so that trapper convenience is
4
balanced with the concerns of Nevadans who do not trap wildlife and who regard the well-
5
being, safety and protection of target and non-target wildlife species and domestic animals
6
as the proper priority.
7
5.
For a preliminary injunction followed by a permanent injunction requiring
8
that the Commission stay the commencement of future furbearing animal trapping
9
season(s) until such time as the above mentioned hearings have been held, a “trapping
10
11
12
13
14
15
16
17
18
19
20
management plan” has been developed with participation by Plaintiffs and all other
concerned parties and has met with Court approval.
6. For costs of suit and a reasonable amount as and for attorney fees.
7. For such other and further relief as this Court deems appropriate and proper.
The undersigned does hereby affirm the preceding document does not contain the
Social Security number of any person.
Dated this____ day of December, 2014
CAVANAUGH-BILL LAW OFFICES, LLC
401 Railroad Street, Suite 307
Elko, NV 89801
By:_____________________________
JULIE CAVANAUGH-BILL
NV Bar No: 11533
21
22
23
24
25
26
27
28
12
1
CERTIFICATE OF SERVICE
2
3
Pursuant to Rule 5(b) of the Nevada Rules of Civil Procedure, I certify under
4
penalty of perjury that I am an employee of CAVANAUGH-BILL LAW OFFICES, LLC,
5
and on this date, I caused the foregoing documents to be served on all parties to this action
6
by delivering a true copy thereof as follows:
7
8
______Faxed
9
______Hand Delivered
10
______Regular Mail
11
12
______Certified Mail
13
______Overnight Mail
14
______E-Mail
15
16
17
18
19
20
Harry B. Ward
Deputy Attorney General
David Newton
Sr. Deputy Attorney General
DATED this ________day of __________________, 2014.
21
_______________________________
Employee of Cavanaugh-Bill Law
Offices, LLC
22
23
24
25
26
27
28
13